de minimis impact will “cause or contribute” to an air quality problem and to seek remedial

17 action from the proposed new source or modification.” (75 FR 64892).

18 In the course of litigation challenging the SILs for PM2.5, the EPA recognized that the

19 regulatory language the EPA adopted in Sections 51.166(k)(2) and 52.21(k)(2) did not provide

20 sufficient flexibility for permitting authorities to exercise discretion to conduct or require

21 additional analysis in some circumstances where the EPA had advised doing so. As a result, the

22 EPA requested that the Court remand and vacate these provisions so the EPA could take

23 corrective action. The Court granted this request and observed that, under the language in

Sections 51.166(k)(2) and 52.21(k)(2), sources in some 1 scenarios would not be required to

2 demonstrate that they would not cause or contribute to a violation of the NAAQS or increment,

3 even though, based on Petitioner’s arguments, the sources likely would cause or contribute to a

4 violation in such scenarios. The Court concluded this would contravene the statutory command

5 in Section 165(a)(3) of the Act. (Op. at 10, 2013 WL 216018, *4). The Court also said that on

6 remand the EPA may choose to promulgate regulations that “include SILs that do not allow the

7 construction or modification of a source to evade the requirements of the Act as do the SILs in

8 the current rule” and that such regulations would be subject to further review by the Court. (Op.

9 at 11, 2013 WL 216018, *5).

10 The Court’s decision does not preclude the use of SILs for PM2.5 as part of a

11 demonstration that a source will not cause or contribute to a violation of the PM2.5. However, to

12 ensure that PSD permitting decisions meet the requirements of the CAA, permitting authorities

13 that continue using SILs for PM2.5 must ensure that they select and apply such SILs in a manner

14 that is consistent with the Court’s decision and the EPA’s statements from the preamble of the

15 2010 regulation adopting SILs for PM2.5. The EPA is continuing to evaluate the January 22,

16 2013, decision from the D.C. Circuit Court of Appeals and will develop a proposed rule to

17 address the issues identified by the EPA and the Court’s decision. In the interim, the EPA

18 advises against continuing to apply the SIL provisions in the vacated Sections 51.166(k)(2) and

19 52.21(k)(2) (or in state regulations that contain regulatory text that is the same as or has a similar

20 effect as the paragraph (k)(2) language), particularly in the types of scenarios described in the

21 court decision and the EPA’s 2010 preamble to the PM2.5 SILs rules. However, with appropriate

22 safeguards, the EPA believes permitting authorities may continue to select and apply SILs values

23 for


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